Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD223736
NICHOLSON, J.
Tracy W., mother of the minor, appeals from the judgment of disposition. (Welf. & Inst. Code, §§ 358, 360, 395 [further undesignated statutory references are to this code].) Appellant contends substantial evidence does not support the facts pleaded in the petition; the notice requirements of the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq., were not met; the juvenile court erred in appointing her a guardian ad litem; and the juvenile court further erred in denying her services. We affirm.
FACTS
The Department of Health and Human Services (DHHS) removed the three-year-old minor from appellant’s custody in January 2006, because appellant was unable to provide for his care as a result of her mental illness. According to the detention report, appellant had received six months of family maintenance services in 2005 and was discharged from family maintenance in early November of that year. Thereafter, appellant decompensated due to failure to take her psychotropic medication, was placed on an involuntary mental health hold in January 2006, and spent 14 days in the hospital.
After her release from the facility, appellant called the family maintenance supervisor and said she was again off her medication; wanted the minor removed from the maternal grandmother’s care and placed in the Crisis Nursery, although she previously believed the maternal grandmother provided good care for the minor; and expressed concern that the social worker was stealing the minor. Appellant, who was five months pregnant, said she was not taking the medication Turning Point was delivering to her home because the nurse at Turning Point was “mean and ugly to her.”
The social worker assigned to the case placed the minor in foster care after the maternal grandmother refused placement because she was not able to raise another of appellant’s children. When interviewed the next day, appellant remained guarded, paranoid and disorganized. The court declined to detain the minor, finding no nexus between appellant’s mental health problems and risk of harm to the minor because appellant had made arrangements to keep the minor safe, but conditioned appellant’s continued custody on an agreement that the minor remain in the Crisis Nursery pending development of a service plan.
Further investigation by DHHS disclosed that appellant had been decompensating for some time and that others were arranging child care for her. Appellant had suicidal thoughts approximately six months prior to removal of the minor and was not on her medication at that time. While appellant did thereafter stabilize on family maintenance services, within a month of her case being closed, the home and the minor were dirty and neglected except when an adult half-sibling of the minor, N.S., came to clean and care for the minor. N.S.’s support continued until appellant obtained a restraining order against N.S. believing N.S. was trying to kidnap the minor. Appellant believed that those trying to assist her were trying to kidnap the minor and did not believe her diagnosis of schizophrenia. Appellant decided not to abide by the agreement to place the minor in the Crisis Nursery, because she feared the minor would be taken away from her.
DHHS filed an amended petition alleging both appellant’s current problems which placed the minor at risk and her recent history of inability to care for the minor due to her mental illness. In February 2006, the minor was detained on the amended petition.
According to the report for the jurisdiction/disposition hearing, several relatives stated that, when appellant was on medication in 2005, she slept much of the time, was unable to care for herself and left the minor’s care to others. The Turning Point coordinator indicated that, as of February 21, 2006, appellant was refusing medication and services due to her paranoia and was unable to care for her own needs as demonstrated by the unkempt state of her home. The family maintenance social worker reported appellant believed the maternal grandmother and the social worker were trying to kidnap her child and appellant’s delusions limited the ability of professionals to assist her. During an interview with appellant, the social worker observed that she appeared to be responding to internal stimuli and was becoming visibly agitated. Due to her paranoia, appellant would not cooperate with the investigation or allow others to assist her. The social worker recommended continuing disposition for two psychological evaluations to determine whether appellant should be denied services.
At the jurisdiction/disposition hearing in February 2006, appellant’s counsel asked the court to continue the hearing because appellant was in the hospital. At the continued hearing, counsel stated she had no contact from appellant and believed appellant might still be in the mental hospital. Counsel also asked the court to appoint a guardian ad litem for appellant. The court declined to do so, citing lack of notice to appellant, and continued the matter.
The minute order for that date in the clerk’s transcript states that counsel also requested appointment of a guardian ad litem at that time. The reporter’s transcript of the hearing does not reflect that such a request was made at that hearing.
When the case was heard on March 20, 2006, appellant’s counsel again raised the issue of a guardian ad litem since appellant remained in a psychiatric facility. The court appointed a guardian ad litem for the purpose of investigating whether the appointment was necessary and whether appellant wanted such an appointment and set a date for the guardian ad litem to report back.
The matter resumed April 3, 2006. The guardian ad litem advised the court that appellant objected to the appointment. The court set the case for trial intending to raise the issue with appellant at that time. The social worker informed the court of appellant’s scheduled release date and stated her concerns about proceeding without a guardian ad litem in light of discussions with appellant’s clinician and recent observations of appellant.
At the next hearing on April 17, 2006, appellant was present. After discussing the matter with appellant and hearing comments from the guardian ad litem and appellant’s attorney, the court vacated the appointment of the guardian ad litem, finding insufficient evidence to support an appointment over appellant’s objection.
In May 2006, the court sustained the amended petition and ordered appellant to undergo two psychological examinations. An addendum report in June 2006 provided the results of the two psychological examinations. Dr. Sidney Nelson concluded appellant suffered from a mental disorder which would preclude her from meaningfully benefiting from services, noting her lack of insight into the nature and severity of her mental illness and her denial and minimization of the effect of her mental illness on the minor. Dr. Larry Nicholas concluded appellant was unlikely to be able to provide consistent or stable care for the minor even if she received services, since she was likely to be non compliant with medications, have further psychotic breaks and require additional hospitalizations and observed that, even at her baseline functioning she was unable to care for herself or the minor. Both reports were attached to the addendum. Each report stated its purpose was to determine whether appellant could benefit from services; generally identified both the materials reviewed for the evaluations and individuals other than appellant who were interviewed; described the assessment tools; and analyzed the results.
At the disposition hearing in July 2006, appellant submitted on the reports. The court denied her reunification services pursuant to section 361.5, subdivision (b)(2). Additional facts appear in the discussion of compliance with the ICWA notice requirements.
DISCUSSION
I
The Petition
Appellant contends the court erred in finding allegation (b)(2) of the petition true because the facts were old and there was no evidence the conditions set forth in that paragraph of the amended petition currently existed.
The amended petition filed in February 2006 alleged in paragraph (b)(1) the current facts that appellant was diagnosed with schizophrenia, was not taking her medications, was placed on an involuntary mental health hold, exhibited delusional behavior and was unable to care for the minor due to her severe mental health problems. The petition further alleged in paragraph (b)(2): “The child’s mother Tracy [W.], has psychiatric and or emotional problems which render her incapable of providing adequate care and supervision for the child . . . in that the child has been found on more than one occasion wandering unattended inside and outside the mother’s apartment while the mother slept. The mother’s home has been found in a filthy condition with soiled diapers and dirty laundry covering the floor, rotten and molded food, and no clean clothes for the child.”
“While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, original italics.) Allegations of previous neglect, standing alone, do not establish a substantial risk of harm; however, when coupled with current evidence of neglect or inadequate supervision, the jurisdictional basis for the dependency may be established. (Ibid.) This is precisely what was alleged and proved in this case.
Appellant does not challenge either the sufficiency of the evidence to support the facts alleged in the petition, but instead, focuses on the facts set forth in allegation (b)(2) of the petition and contends those facts are not current. Allegation (b)(1) contains current facts. Allegation (b)(2) contains facts which occurred in the months prior to the petition, some of which led to the earlier family maintenance case. Viewing the petition as a whole, there are adequate facts to demonstrate appellant’s recent history of mental illness which adversely impacts her ability to care for her minor child and which currently led her to refuse assistance from others who would help her do so. The facts in allegation (b)(2) are probative of the current conditions in that they show appellant’s deteriorating ability to care for herself and the minor in the months prior to the petition even when services temporarily stabilized the home. The juvenile court did not err in sustaining the petition as a whole.
II
Guardian ad Litem
Appellant contends the court denied her due process by appointing a guardian ad litem for her without a hearing or her consent.
As applied to dependency cases, section 372 of the Code of Civil Procedure requires the appointment of a guardian ad litem if a parent is incompetent. (In re Sara D. (2001) 87 Cal.App.4th 661, 667.) However, it is error, and a denial of due process, to appoint a guardian ad litem if the parent has not agreed to the appointment or is not truly incompetent, because the effect of the appointment is to remove the control of the litigation from the parent. (In re C.G. (2005) 129 Cal.App.4th 27, 32-34.) Due process is satisfied either by the parent’s consent or an informal hearing in which the parent has an opportunity to explain why a guardian ad litem is not required. (In re Enrique G. (2006) 140 Cal.App.4th 676, 683.)
There is a split in authority as to the nature of the error. In re C.G. held the error to be structural, requiring reversal. (In re C.G., supra, 129 Cal.App.4th at pp. 33-34.) However, the majority view, exemplified by the holding in In re Enrique G., is that the error must be assessed under the harmless beyond a reasonable doubt standard. (In re Enrique G., supra, 140 Cal.App.4th at pp. 684-685.) We believe the approach in Enrique G. is the better reasoned one and adopt it.
The Supreme Court recently granted review in In re James F. (review granted Mar. 28, 2007, S150316) to decide the proper standard. See also In re Jaclyn S., review granted July 18, 2007, S153178.
Here, the court neither asked appellant nor held an informal hearing before appointing a guardian ad litem. However, under the circumstances, the error was harmless beyond a reasonable doubt.
Prior to the jurisdiction/disposition hearing, appellant was hospitalized due to her mental illness. The court initially declined counsel’s request to appoint a guardian ad litem and continued the case. Eventually, the court did appoint a guardian ad litem for the purpose of contacting appellant and reporting her wishes to the court. Within two weeks, the guardian ad litem had contacted appellant and reported her objection to the appointment. Without taking any substantive action on the case, the court set the matter for trial, selecting a date by which appellant would be released from the psychiatric facility and be able to appear. Less than a month after the appointment, appellant did appear in court, the court vacated the appointment of the guardian ad litem and continued the trial. No decisions were made regarding the case during the period appellant lacked control of the litigation. Because nothing occurred during the period of the guardian ad litem’s appointment and appellant had the opportunity thereafter to consult with her counsel, any error in appointing the guardian ad litem was necessarily harmless beyond a reasonable doubt.
III
Denial of Services
Appellant contends substantial evidence did not support the order denying her services pursuant to section 361.5, subdivision (b)(2). Appellant does not contest the existence of her mental disability, but rather the evidence that she was incapable of utilizing reunification services, particularly since she had done so before in the family maintenance case.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
“Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, . . . [¶] . . . [¶] (2) That the parent . . . is suffering from a mental disability [as defined in Family Code section 7827] that renders him or her incapable of utilizing those services.” (§ 361.5, subd. (b)(2).) Even if this condition exists, the court must order services unless “competent evidence from mental health professionals establishes that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child” within the statutory time limits for reunification services. (§ 361.5, subd. (c).) Evidence of two experts, either or both of whom may be a “licensed psychologist who has doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders,” is required to support the section 361.5, subdivision (b)(2) finding. (Fam. Code, § 7827, subd. (c); Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 473.)
At disposition, the court had evidence of appellant’s prior cooperation with family maintenance services which resulted in stabilizing the family and closing the case in early November 2005. The court also had evidence that appellant thereafter obtained a restraining order against N.S. who had previously assisted her with child care, during and after the family maintenance period, and may have been a part of the stabilization the social worker relied on in closing the case. Further, the court had reports from two psychologists which agreed that appellant’s mental disorder precluded her benefiting from services. At best, there was conflicting evidence of appellant’s ability to benefit from services before the court. The court resolved any potential conflict adversely to appellant and we may not reweigh the evidence. Substantial evidence supports the juvenile court’s finding that appellant was described by section 361.5, subdivision (b)(2) and that denial of services was appropriate.
IV
Reliability of the Experts
Appellant challenges the reliability of the psychological opinions relied on by the juvenile court in denying her services. Appellant contends the source of the evidence relied on by the experts in their reports was unknown; the evidence itself was dated, inaccurate or incomplete; and the stated purpose of the evaluations did not track the language of section 361.5, subdivision (b)(2), i.e., whether appellant’s mental disability rendered her “incapable of utilizing” services. She contends these flaws make the experts’ conclusions unreliable.
Each of the problems identified by appellant relate to evidentiary matters concerning the report. Deficiencies in the reports go to the weight to be given by the court to the expert opinions contained in them. Appellant did not object either to the reports or to the opinions expressed in them in the trial court and has forfeited challenge of them on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; cf. People v. Medina (1978) 78 Cal.App.3d 1000, 1007 [must object to probation report defects or issues waived]; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
Appellant contends the issue is not forfeited because it is one of substantial evidence. It is true that claims of insufficient evidence are not waived by failing to object. (People v. Butler (2003) 31 Cal.4th 1119, 1126.) However, the claim here is not that the evidence before the court was insufficient, but rather that the evidence before the trial court was flawed and if the flaws were evaluated, the evidence would then have been insufficient to support the court’s orders. This is precisely the type of claim which requires an objection in the trial court. Had there been an objection, the alleged flaws could have been fully explored and their importance evaluated by the juvenile court. Absent such an objection, we must affirm. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
Appellant asks us to follow the dissenting opinion in Curtis F. v. Superior Court, supra, 80 Cal.App.4th at page 475. However Curtis F. is factually distinguishable since, in that case, the two expert opinions disagreed and the issue was whether the juvenile court could nonetheless find that section 361.5, subdivision (b)(2) applied. The majority and the dissent disagreed over whether the underlying facts or the expert opinions constituted the competent evidence to be assessed by the juvenile court. (Curtis F. v. Superior Court, supra, at pp. 474-475.) Here, however, the two experts did agree and the issue is the reliability of the opinions expressed. Neither the majority opinion nor the dissent of Curtis F. address this issue.
V
Qualifications of the Experts
Appellant contends there was no evidence the experts satisfied the requirements of Family Code section 7827, i.e., that the psychologists who rendered the opinions had five years experience in the diagnosis and treatment of emotional and mental disorders.
The expert’s qualifications relate solely to the competency of the evidence and are not an affirmative element of proof, thus failure to object forfeits the issue on appeal. (In re Joy M. (2002) 99 Cal.App.4th 11, 19-20.) Appellant urges us to follow In re Catherine S. (1991) 230 Cal.App.3d 1253 where the evidence was insufficient to support the denial of services. However, in Catherine S., there was not a mere failure to establish the qualifications, but rather affirmative evidence one of the psychologists, being employed by a state agency, was not subject to licensing and thus could not serve as one of the two required experts. Catherine S. is factually in apposite and its holding does not relieve appellant from the requirement of making a timely objection to preserve appellate review.
VI
Indian Child Welfare Act Notice
A. Additional Facts Regarding Notice
When the minor was first detained in January 2006, appellant claimed Cherokee heritage and filed a notification of Indian status. No notice was required because the minor was returned to appellant. When the minor was again removed from appellant’s custody in February 2006, the court ordered notice of the proceedings be sent to the Cherokee tribes.
A declaration filed by the paralegal responsible for sending notice stated there was no ancestor information from either parent and that the social worker said appellant refused to provide any information. When contacted by the paralegal, the maternal grandmother said she knew nothing about any Indian heritage and would not provide any family information. The social worker provided some information on the maternal grandfather. The JV-135 notice form included what little information was available for the maternal grandfather, through whom the Indian heritage was claimed, i.e., the name, year and place of birth and the fact that he is now deceased. DHHS sent notices to the three federally recognized Cherokee tribes February 6, 2006.
By the time the jurisdiction/disposition report was filed in late February 2006, the social worker had made contact with the minor’s father, who also claimed Cherokee heritage. The social worker’s interview disclosed appellant’s parents were Mary W. and Willie James W.. The father’s parents were Willie Si. and Mildred M.
The paralegal filed a second declaration in late February 2006, noting the dates that the tribes and the Bureau of Indian Affairs (BIA) had received the notice previously sent and attaching copies of the return receipts.
The paralegal filed a third declaration in March 2006, stating that, after the first notice was sent, appellant provided further information on both the maternal and paternal family history in an Indian ancestry questionnaire. The questionnaire did not include the name of the maternal grandfather, previously provided by appellant, but did have several additional names and some information about the individuals. The paralegal also had information from the social worker that the father claimed “Black Cherokee” heritage through the paternal great-grandmother, Mary M., born in 1909 in Alabama. The paralegal tried, without success, to contact the father several times to get further information. DHHS sent a second notice with the new information to the tribes March 13, 2006, along with a letter which informed the tribes that this notice had new information.
The second JV-135 notice form included all names provided by appellant and the father, although the relationships of the individuals were not entirely clear when compared to the various sources of information. The notice form incorrectly listed the same birth date for appellant and her mother and many details were marked as unknown.
The paralegal filed a fourth declaration in late March 2006, which reported that letters from the United Keetoowah Band of Cherokee Indians, apparently in response to both the first and second notice, stated the minor was not eligible for enrollment. Further, a letter from the Eastern Band of Cherokee Indians, apparently in response to the first notice, stated the minor was not eligible to register as a member of the tribe.
A fifth declaration from the paralegal reported the Cherokee Nation, responding to the first notice, stated the minor was not considered an Indian child.
A sixth declaration from the paralegal reported the Eastern Band of Cherokee Indians, responding to the second notice, again concluded the minor was not eligible to register in that tribe.
At a hearing in June 2006, the court noted the tribes’ negative responses to the notices and asked appellant’s trial counsel to review the JV-135 notice form with appellant to make sure the information was correct. Counsel did so and informed the court that appellant indicated everything was correct. The court then inquired of the father who claimed Cherokee heritage through the paternal great-grandmother, whose name had been provided to the tribes. The father stated he had been trying to get further information but had not yet been able to do so. The court asked the father to review the JV-135 form as well. After some discussion, the court found the form accurate as to the mother and directed the father to provide further information and, if the information was different from what had been sent to the tribes, new notice would be required.
At the disposition hearing in July 2006, the father was not present. The court confirmed that the file contained the responses of the tribes, although it did not distinguish between the first and second notices. The court found the minor was not an Indian child and the ICWA did not apply. No one objected to the finding.
In August 2006, the paralegal filed a seventh declaration informing the court of the Cherokee Nation’s response to the second notice, i.e., that further information, specifically the middle name and date of birth of the paternal great-grandmother was necessary to determine whether the minor was eligible for tribal membership. The paralegal responded by letter to the tribe that the father’s whereabouts were unknown and the paternal grandmother stated that, as far as she knew, the father was not Native American.
At appellant’s request, the record was augmented to include the paralegal’s declaration that the Cherokee Nation received the letter responding to their request for information. The augmented record also included an October 2006 declaration from the paralegal stating that the Cherokee nation sent a second request for additional information. It is apparent that the confusion of the earlier notice had been corrected, along with the birth date of the maternal grandmother, and additional names were provided to the tribe although there were still no birth dates for several of the individuals and no middle names for some of the female ancestors. The paralegal responded to this request stating that appellant was unable to provide further information due to unstable health, the maternal grandmother had reiterated that appellant had no Native American heritage and the paralegal was unable to provide further information. The final declaration by the paralegal informed the court that the last response to the tribe’s request for information had been received and that the Cherokee Nation had determined that the minor could not be considered an Indian child in relationship to the Cherokee Nation.
B. Analysis
Appellant contends the ICWA notices contained inaccurate and incomplete information and reversal is required.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and DHHS have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d).) If, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.664(f).)
The Legislature has adopted the relevant portions of the Code of Federal Regulations and the federal guidelines on Indian child custody proceedings which specify the contents of the notice to be sent to the tribe in order to inform the tribe of the proceedings and assist the tribe in determining if the child is a member or eligible for membership. (§ 224, 224.2; 25 C.F.R. § 23.11(a), (d), (e) (2007); 44 Fed.Reg. 67588 (Nov. 26, 1979).) If known, the agency should provide name and date of birth of the child; the tribe in which membership is claimed; the names, birth dates, and places of birth and death, current and former addresses and tribal enrollment numbers of the parents, grandparents and great-grandparents, as this information will assist the tribe in making its determination of whether the child is eligible for membership and whether to intervene. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e) (2007); 44 Fed.Reg. 67588 (Nov. 26, 1979); In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.)
“Notice must be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the act does not apply to the case.” (Former Cal. Rules of Court, rule 5.664(f)(5).) “If, after a reasonable time following the sending of notice under this rule -- but in no event less than 60 days -- no determinative response to the notice is received, the court may determine that the act does not apply to the case unless further evidence of the applicability of the act is later received.” (Former Cal. Rules of Court, rule 5.664(f)(6).)
Here, appellant claimed Cherokee heritage at the outset and provided minimal information of her ancestry. The maternal grandmother was completely unwilling to provide any information and said she was unaware of any Indian ancestry. DHHS sent notice and the tribes responded negatively.
Thereafter, appellant provided additional information, the minor’s father provided minimal information and DHHS sent a second notice. Appellant was given the opportunity to correct any erroneous information in the notice but informed the court the notice was correct. The father was directed by the court to provide additional information on his Indian heritage but failed to do so and did not return calls when the social worker and paralegal tried to investigate.
Recent cases, although arising in another context, i.e., appeal after remand to correct ICWA notice, have applied forfeiture where a party has had the opportunity to correct clerical errors in the notice documents and did not do so.
(In re X.V. (2005) 132 Cal.App.4th 794, 803-804 [at hearing after remand on adequacy of the notices neither party objected and no one showed the notices to the relatives present to see if there were errors]; In re Amber F. (2007) 150 Cal.App.4th 1152, 1156 [parent had multiple opportunities to examine the notice documents and had she brought errors to the juvenile court’s attention they could have been dealt with].)
The court in X.V. balanced the interests of the tribes against the interests of the minors in permanence and stability and found the parents forfeited a second appeal of ICWA notice. (In re X.V., supra, 132 Cal.App.4th at p. 804.) The court stated: “As a matter of respect for the children involved and the judicial system, as well as common sense, it is incumbent on parents on remand to assist the Agency in ensuring proper notice is given. Here, for instance, the inadequacies in the notices, a misspelling and the apparent use of a nickname, could easily have been rectified at the juvenile court given a timely objection. Moreover, Congress’s intent to not cause unnecessary delay in dependency proceedings is evidenced by the provision allowing a hearing on the termination of parental rights within a relatively short time . . . after the BIA or tribe receives ICWA notice. [Citation.] We do not believe Congress anticipated or intended to require successive or serial appeals challenging ICWA notices for the first time on appeal.” (Ibid.; see also In re Amber F., supra, 150 Cal.App.4th at p. 1156.)
The same principles apply here. This is not a case where no notice was sent or DHHS failed to include known information. DHHS made repeated inquiries. Some information was forthcoming from the parents and was provided to the tribes in two notices. The father never gave further information as directed and the mother told the court that the notices she now challenges as fatally flawed were correct. Both grandmothers denied there was Indian ancestry.
The focus of the ICWA is to provide notice to the tribes and preserve Indian heritage of children placed outside the home. Neither Congress nor the Legislature could have intended that the notice provisions should be used to delay permanency for children by allowing parents and family members to withhold information or decline to correct erroneous information in notices. DHHS is not relieved of its duty of inquiry and of providing correct, known, information to the tribes, but families must also bear the burden of ensuring that the information is accurate when asked to review the notices for that purpose. Failure to do so may result in forfeiture of the issue on appeal.
Under the circumstances of this case, including parental inaction, refusal of relatives to provide information, denial of Indian heritage by both grandmothers and appellant’s statement to the court that the information on the notice form was correct, we conclude that the issue of accuracy of the notices has been forfeited. We also conclude that DHHS adequately fulfilled its duty of inquiry by repeatedly contacting or attempting to contact those who had information.
We note from the post hearing declarations, the primary error of an incorrect birth date for the maternal grandmother was corrected. Additionally, the declarations show additional inquiry attempts as well as the paternal grandmother’s repudiation of the father’s claim of Cherokee heritage.
The juvenile court properly found notice to the tribes was adequate and that, due to negative responses from two tribes and no response within sixty days from the third tribe, that the ICWA did not apply.
DISPOSITION
The judgment of disposition is affirmed.
We concur: BLEASE, Acting P.J., SIMS, J.